Reefer Madness?

Angela and Sylvan shortly after his birth, and before the baby was removed by CPS.

Angela Jenkins grabbed her common-law husband by the shoulders and shook him from his sleep. It was time; the baby was coming. At three in the morning on September 22, Aaron Asher rushed Jenkins to the Memorial City branch of Memorial Healthcare System, where she gave birth to their second child, Sylvan Asher.

It should have been the joy of motherhood and a growing family. Instead, a week later, the couple had no children. Sylvan and the couple's older child, Bishop Asher, were gone, taken away by the state. Jenkins and her newborn had both tested positive for marijuana.

Under Children's Protective Services' policy, testing positive for substances while pregnant constitutes physical abuse. A CPS caseworker seized Sylvan and a week later showed up unannounced at the family's apartment. Citing "imminent danger," she also removed the couple's one-year-old boy, Bishop, without a court order.

But was it right for CPS to do so? CPS spokesperson Judy Hay says the family displayed distressing symptoms: possible drug abuse, frequent job changes and a lack of support from relatives. Research indicates, she adds, that such factors put children at high risk for neglect, abuse and even death.

The couple's attorney, Phil Swisher, has another interpretation: "I think [CPS] screwed up, and they can't admit it. They screwed up by taking the children, and they took them without court authorization. I think they're trying to cover their posteriors," he says.

"The issue is: Do we live in a country where the government can come into your home without a court order and take your child? I think to do that they better have a damn good reason, and I haven't heard one yet."

So far the only undisputed evidence is Jenkins's positive drug test, which she says is the result of a single use, to alleviate pain during her pregnancy.

The young mother testified at an October 19 district court hearing that she occasionally used marijuana, but no other drugs, and quit when she became pregnant with Bishop. Before Sylvan's birth, the family lived with Jenkins's father in his Spring Branch-area home but were not on amicable terms. When Thomas Jenkins noticed his daughter was pregnant again, he told the couple to move out. That night, she says, she endured severe cramping for three hours before unlocking a living-room cabinet where she had previously seen stubs of two joints in an ashtray. Everyone else was asleep.

"I was having bad contractions, and I thought maybe it would help me sleep," Jenkins says. "It's used for medical reasons, so I tried it. It did help, and I went to sleep.I was suffering. I did it because of the pain." Both Jenkins and her father say they have no idea where the pot came from.

Two days later Sylvan came into the world and tested positive for marijuana. Drug testing in pregnancy is not standard procedure, says Beth Sartori, assistant director of corporate communications at Memorial Healthcare System. But it can be performed on a physician's request, or in Jenkins's case, when the mother's prenatal care is questionable.

It's not just the positive drug test, but also the absence of prenatal care that troubles CPS, Hay says. Moreover, Sylvan was several weeks premature and has hydrocephalus, a sometimes fatal condition of water on the brain. (The abnormality is not necessarily preventable with prenatal care, which the parents say they could not afford, adding that they unsuccessfully applied for Medicaid four times.)

"Whether it was one or ten marijuana cigarettes, we really don't know," Hay says. "She did expose her unborn baby, plus he was medically fragile. We were concerned with improper care."

The couple, though, say that CPS is more interested in nailing them for the marijuana use than in securing the welfare of the children. "They took advantage of our distraction," Jenkins says of Sylvan's hydrocephalus. "We were devastated by the news that our child could possibly die. The nurses and doctors said not to worry. 'It's not like you have coke in your system; it's just a little pot.' "

A little weed though, by CPS standards, is enough to endanger Bishop and is grounds for his emergency removal without court authorization. Asher is skeptical. "If he was in 'imminent danger,' why did they wait a week before they got him?"

Hay says CPS spent that week trying to place Bishop with a relative before settling for foster parents. "For those few days Mom was still in the hospital. The newborn was not home or anything, so after looking at the home, we did feel like both children needed to be out for their safety, but we were hoping they would go into a relative's home," she says.

Yet at the hearing CPS caseworker Pepper Nichols testified that the couple's apartment was "clean" and that Bishop "seemed happy and well nourished." The couple complain that when Nichols arrived to take Bishop, the investigator sat on the living-room couch and didn't even notice the apartment has two bedrooms, one for the children, with a closet full of blankets and tiny clothes.

"They didn't even ask for his shots record," Jenkins says, close to tears. "He's due for shoots soon. They're not concerned about that, but I am."

Jenkins, 24, worked pricing merchandise at a clothing store before she quit to be a stay-at-home mom. Her long hair shadows her willowy, slender frame. When she turns her head, the shift of her shirt reveals the tip of a bright tattoo on her back. Lines travel her gaunt face, just beneath the eyes, betraying the sleepless nights spent worrying about her sons. CPS did not tell her and Asher where their babies are or who is watching over them.

Asher, 23, keeps his wavy hair, several inches past shoulder-length, tied back so it won't interfere with his job installing hardwood floors. Against his bronze skin, the tattoos on his arms are faint. The couple, together for two years, say they were targeted because of their appearance and because they are poor.

Certainly CPS is concerned with the family's living arrangements and financial stability. "They didn't have a home situation," Hay says of the "high risk factors." "They had a tentative support basis in general. They've been living for two years with her father, who did not seem supportive. They didn't have enough of a job history."

While Nichols and Hay maintain that income is not a factor in this case, during the hearing the court questioned Asher in detail about his wages and expenses.

"You can't have it both ways," says Swisher, who believes CPS is unfairly scrutinizing his clients because they are indigent.

Ridiculous, Hay says. "What being poor means is that you have less resources, less options. It makes you more vulnerable. We really go to great lengths to not confuse poverty with child abuse."

But, Swisher questions, is smoking marijuana truly child abuse? The harm done in separating the children from their parents is greater than the harm, if any, done by smoking pot, he says.

One witness, Dr. Povamma Muthappa of the hospital's neonatalogy intensive care unit, testified that marijuana use is not known to cause either premature births or hydrocephalus. Dr. Susan Robbins, a professor at the University of Houston graduate school for social work, who also trains CPS workers, testified that "a preponderance of evidence shows no harm is done to the fetus when the mother uses marijuana during pregnancy; the same is true for young development."

In fact the only evidence the state has is the positive tests of the newborn and Jenkins. There are no allegations of abuse or drug use against Asher, yet CPS has filed a petition to terminate both Jenkins's and Asher's parental rights. That outrages Swisher. "They are going to terminate [Asher's] parental rights for nothing," he says. "If that doesn't scare you, there's something wrong, that they can stand up in front of a district judge and say that this man has done nothing wrong and that's why we're taking his children away."

Hay says CPS's goal is to reunite the children with their parents as soon as possible. The petition is just standard procedure in Harris County to expedite putting children up for adoption should their parents be deemed unfit, she says.

Swisher, though, is not convinced. Considering that the parents have no prior drug or criminal records and that they took good care of Bishop, why, he asked Nichols in court, did she remove the children during the investigation? Nichols answered that pending drug assessments (interviews to determine the nature of an individual's drug use), CPS can't determine if the parents are prone to future drug use. "We never know exactly what's going to happen in the future," she said.

At the time of the hearing, nearly a month after the investigation began, Jenkins and Asher said that neither CPS nor the agency that oversees the drug assessment, Turning Point, had contacted them. Hay attributes the delay to a lost fax.

Last week Jenkins and Asher visited five-week-old Sylvan, the first time they had been allowed to see him since the hospital. Sylvan, they report with relief, has gained a lot of weight and seems healthy. While Jenkins says she found comfort in meeting the foster parents and learning that they have been regularly taking Sylvan to a radiologist to monitor his condition, she is upset that her son has been bonding with strangers.

At the next hearing, scheduled for this month, the court will review the results of the parents' drug assessments. It could be, Hay says, that they reveal no risks for substance abuse and that the couple just need some parenting information. Yet Jenkins says the Turning Point counselor was biased, telling her -- before the interview even began -- that she would have to submit to random urine analysis and weekly drug counseling.

"There must have been something that would make [the counselor] say that," Hay offers.

Jenkins has given up on fairness; she just wants her kids back. "I have no problems with drugs, but if they want me to go to drug counseling, I'll go to drug counseling. I'm a very good mother, but if they want me to go to parenting classes, I'll go to parenting classes. I don't care. I just want my babies back. Just tell me what I have to do to get my babies back."